Loren Dean Frost v. Dayton Power and Light Co.

Decision Date23 June 2000
Docket Number00-LW-3130,98 CA 669
PartiesLOREN DEAN FROST, Plaintiff-Appellant v. DAYTON POWER AND LIGHT COMPANY, et al., Defendants-Appellees Case
CourtUnited States Court of Appeals (Ohio)

COUNSEL FOR APPELLANT: John F. Berry, 707 Sixth Street, P.O. Box 950 Portsmouth, Ohio 45662.

COUNSEL FOR APPELLEE: Scott R. Thomas and Norman J. Frankowski, One Financial Way, Suite 312, Cincinnati, Ohio 45242.

DECISION

ABELE J.

This is an appeal from an Adams County Common Pleas Court judgment granting a directed verdict in favor of Dayton Power and Light Company ("DP&L"), defendant below and appellee herein.

Loren Dean Frost, plaintiff below and appellant herein, raises the following assignment of error for review:

"THE LOWER COURT ERRED WHEN IT GRANTED THE DAYTON POWER AND LIGHT COMPANY'S MOTION FOR A DIRECTED VERDICT ON LIABILITY AT THE CLOSE OF THE PLAINTIFF'S CASE."

Our review of the record reveals the following facts pertinent to the instant appeal. DP&L engaged Enerfab, Inc. ("Enerfab"), an independent contractor, to update an ignitor system located at one of its power plants. When Enerfab had completed installing the new system, Kessinger Services Industries ("KSI"), another independent contractor which DP&L employed, began to paint the newly-installed system.

On December 8, 1993, appellant, an employee of KSI, was painting the newly-installed pipes. The pipes were located approximately twelve inches above the floor. As appellant was painting, a one-to two-inch pipe allegedly fell from above and

struck appellant.

On December 5, 1995, appellant filed a complaint against DP&L and Enerfab. Appellant alleged that Enerfab negligently performed the work DP&L hired it to do. Appellant claimed that Enerfab "left old piping hanging in a hazardous manner." Appellant further alleged that DP&L failed to provide appellant with a safe place to work. Appellant averred that DP&L failed to warn appellant of hazardous piping left in the area where appellant was working.

On February 7, 1996, DP&L filed an answer denying liability and specifically denying that it had knowledge of any hidden dangers associated with appellant's work. On February 16 1996, Enerfab filed an answer denying liability.

On December 4, 1996, DP&L filed a motion for summary judgment. In its motion, DP&L claimed that no genuine issue of material fact remained as to whether it owed appellant a duty. DP&L noted that R.C. 4101.11 and 4101.12 generally require employers to provide an independent contractor with a safe place to work. DP&L argued, however, that pursuant to the "inherent danger" exception, it owed appellant no duty, unless appellant demonstrated that DP&L "actively participated" in KSI's work. DP&L asserted that appellant was fully aware that industrial painting involves inherent dangers. DP&L further asserted that it had no knowledge of any abnormal dangers associated with the piping. DP&L also argued that appellant could not establish that it actively participated in appellant's work. DP&L thus asserted that summary judgment was warranted because appellant could not establish that a genuine issue of material fact remained as to whether DP&L breached a duty of care.

On January 31, 1997, appellant filed a memorandum in opposition to DP&L's motion for summary judgment. Appellant argued that he was not engaged in inherently dangerous work. Appellant contended that a pipe falling from above the area in which he was working did not constitute a danger inherent in the very nature of his particular task. Thus, appellant asserted, the general principles of R.C. 4101.11 and 4101.12 applied.

On January 31, 1997, appellant filed a motion for partial summary judgment. Appellant claimed that no genuine issue of material fact remained as to whether DP&L breached its statutory duty to provide appellant with a safe place to work or as to whether DP&L's failure to provide appellant with a safe place to work proximately caused his injuries.

On February 10, 1997, DP&L filed its reply to appellant's memorandum in opposition to DP&L's motion for summary judgment. DP&L argued that in his memorandum in opposition, appellant erroneously assumed that the safe place to work statutes, R.C. 4101.11 and 4101.12, controlled the outcome of the case. DP&L reiterated its position that the inherent danger exception applied and relieved it of liability for appellant's injury.

On February 24, 1997, DP&L filed a memorandum in opposition to appellant's motion for summary judgment, again reiterating its position that: (1) appellant was engaged in inherently dangerous work; (2) DP&L did not actively participate in appellant's work; and (3) DP&L possessed no knowledge of any abnormal dangers associated with appellant's work or the piping.

On September 22, 1997, the trial court overruled DP&L's motion for summary judgment and appellant's motion for partial summary judgment.

On June 26, 1998, DP&L filed a motion for reconsideration of the trial court's decision overruling its motion for summary judgment. DP&L requested the trial court to reconsider its previous decision in light of the Ohio Supreme Court's most recent decision concerning the inherent danger exception, Sopkovich v. Ohio Edison Co. (1998), 81 Ohio St.3d 628, 693 N.E.2d 233. On August 31, 1998, the trial court denied DP&L's motion.

As trial commenced, the duty that DP&L owed to appellant remained undefined. In their respective trial briefs, appellant persisted that he was not engaged in inherently dangerous work at the time of his injury and that the general rules of premises liability defined DP&L's duty, while DP&L maintained that appellant's work was inherently dangerous and that it owed appellant no duty, in the absence of active participation.

At trial, Mark Least, DP&L's project engineer involved with the update of the ignitor system, testified that Enerfab's contract required it to remove the old ignitor system. When appellant's trial counsel presented Least with the pipe that allegedly hit appellant, Least could not state with any certainty whether Enerfab's contract required it to remove the pipe. Least stated that he was uncertain of the pipe's origin. Least further testified that before KSI began painting, Enerfab had completed installing the new ignitor system. Least additionally stated that other than the heat from the nearby boiler, he knew of no hazards in the area where KSI was to paint.

John Knepfle, an engineer with DP&L, also was involved with the upgrade to the ignitor system. Knepfle testified that he checked Enerfab's work to make sure that they were following DP&L's contract specifications. Consistent with Least's testimony, Knepfle also stated that he would not have expected KSI's painters to encounter any unusual hazards. Knepfle specifically testified that he did not expect a pipe to fall.

Danny Ray Carroll, an Enerfab employee who worked on the ignitor system upgrade at DP&L, testified that Enerfab employees removed the existing ignitor system and replaced it with a new system. Carroll did not provide any insight into whether Enerfab should have removed the pipe that allegedly struck appellant. Appellant's trial counsel asked Carroll if he was worried that something might fall on him while working at the plant, to which

Carroll responded: "Well * * * that's why we wear hard hats and

safety glasses. * * *."

Similar to Carroll's testimony, appellant testified that "* * * if you're working in a plant or something * * * you're always told to wear hard hats, you're always told to wear safety glasses * * *."

On September 18, 1998, after the close of appellant's case, DP&L moved for a directed verdict, pursuant to Civ.R. 50(A). DP&L based its motion upon essentially the same arguments it previously had presented in its motion for summary judgment. In its motion for a directed verdict, however, DP&L placed more emphasis on its argument that appellant had been working at a construction site, a setting which the Ohio Supreme Court, in Bond v. Howard Corp. (1995), 72 Ohio St.3d 332, 650 N.E.2d 416, recognized as an inherently dangerous setting. DP&L argued that Enerfab's installation of the new ignitor system constituted "construction" and that the "construction" continued to encompass the painting of the new pipes. DP&L's motion further asserted that appellant failed to present sufficient evidence regarding proximate cause.

At the hearing regarding DP&L's directed verdict motion, DP&L vigorously contested appellant's claim that his work was not inherently dangerous. DP&L argued that in determining whether appellant's work involved inherent dangers, the trial court should not consider only the specific act in which appellant was engaged, painting, as appellant asserted. Rather, DP&L urged the court also to consider the environment in which appellant performed his task.

To counter DP&L's argument, appellant contended that once Enerfab completed its task of installing the new ignitor system, the site no longer constituted a "construction site," and thus, that the site was no longer "inherently dangerous." Appellant further asserted that his injury did not result from a danger inherent in the act of painting itself. Appellant argued that painting simply does not constitute an inherently dangerous task. Thus, appellant contended that the trial court should allow the jury to consider whether DP&L breached its duty to provide appellant with a safe place to work.

On September 23, 1998, the trial court granted DP&L's motion for a directed verdict. The trial court concluded that appellant's injury occurred in an inherently dangerous place and that appellant's job was inherently dangerous. The trial court noted that DP&L's plant "was a required hard hat area, which is customary...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT